Patents - weapons of mass [software] destruction?

Two open source leaders joined Linux founder Linus Torvalds in disparaging software patents on Tuesday, the newest volley in a battle that pits the cooperative programming philosophy against Microsoft.

Torvalds said at the OSDL Linux Summit in Burlingame, California: "Are software patents useful? That's pretty clearly not the case. Software patents are clearly a problem."

Torvalds wasn't alone in his opinion. He was joined in a panel discussion by Brian Behlendorf, a co-founder of the Apache web server software, and Mitch Kapor, chairman of the Mozilla foundation and the Open Source Applications Foundation.

Behlendorf said the way to rebut the argument that software patents provide an incentive for innovation and research investment is to imagine the world without them.

"If you could not patent software algorithms or ideas, how much of the money spent on writing software would go away? How much innovation would disappear? How much investment in that innovation would disappear? I don't think any would disappear," Behlendorf said.

Recent events have drawn attention to the intersecting realms of patents and open source software. IBM donated 500 patents for use in open source software; Sun plans to liberate 1,600 for use with its open source Solaris operating system; and a Hewlett-Packard executive believed in 2002 that Microsoft planned to attack rival open source projects with its patents. The European Union is debating the issue.

In recent months, Microsoft has stepped up efforts to expand its patent portfolio.

One fear is that a patent attack against an open source programmer or customer could cripple the programming project - in particular, one without financial or legal resources. Linux, a well-protected project, potentially infringes 283 patents, according to one study funded by a company that sells insurance to customers worried about such attacks.

But patents can serve as a defensive as well as an offensive weapon. When the SCO Group sued IBM, alleging that Big Blue moved Unix technology to Linux against the terms of a contract with SCO, IBM countersued with three cases of patent infringement.

Andrew Morton, whom Torvalds describes as his "right-hand man" in maintaining Linux, sees that patent defence playing a role. "We might suffer from a patent attack in the future. I assume IBM might lead a counterattack to help defend us," Morton said in an interview after the panel discussion.

Mozilla's Kapor sees the situation as alarming, predicting that Microsoft will use its patent portfolio to attack open source software. He believes tens of thousands of software patents never should have been granted in the first place, and likened them to weapons of mass destruction.

"We have to be concerned about... the use of patent WMDs. That will be the last stand of Microsoft," Kapor said. "If totally pushed to the wall - because their business model no longer holds up in an era in which open source is an economically superior way to produce software, and the customers understand it, and it's cheaper and more robust, and you've got the last monopolist standing - of course they're going to unleash the WMDs. How can they not?"

Microsoft did not comment for this article.

But there might be change in the software patent works, Torvalds said.

"It's a problem the open source community has been pretty aware of for the last five years. The good news is I think a lot of the proprietary vendors are starting to see it as a problem too," Torvalds said. "I'm hopeful that that may eventually cause the solution to come, although it probably takes take a long time."

Added Behlendorf, "IBM's patent grant was a very good thing... Hopefully there will be more of those."

Stuart Cohen, chief executive of the Open Source Development Labs Linux consortium, said he believes others will follow IBM's move.

"We do think there will be a great number of companies following suit," Cohen said. "We think the idea of a couple thousand patents from 10 companies is a great idea."

Stephen Shankland writes for CNET News.com.